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Domestic Application of TreatiesDavid SlossSanta Clara University, [email protected]
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Automated CitationDavid Sloss, Domestic Application of Treaties (2011),Available at: http://digitalcommons.law.scu.edu/facpubs/635
Electronic copy available at: http://ssrn.com/abstract=1826102Electronic copy available at: http://ssrn.com/abstract=1826102
Domestic Application of Treaties
David Sloss
INTRODUCTION
There has been dramatic growth in treaty making since World War II: more than 44,000
treaties were registered with the United Nations between 1945 and 2007.1 Meanwhile, with the
rise of globalization, the boundary separating domestic from international law has become
increasingly permeable. Consequently, states are making greater use of treaties to regulate
activity that was previously regulated exclusively by domestic law. For example, under the 1993
Hague Convention on Intercountry Adoption,2 eighty-three states have agreed to regulate child
adoption on a transnational scale.3 Additionally, states are concluding greater numbers of treaties
that protect the rights of private parties, including, for example, treaties related to international
human rights law,4 international humanitarian law,
5 and international refugee law.
6 As a
consequence of these three trends — growth in the number of treaties, increasing overlap
between treaties and domestic law, and a growing emphasis on private rights — domestic courts
are playing an increasingly prominent role in treaty application.
Traditional scholarship on the domestic application of treaties has focused on the
distinction between monist and dualist legal systems.7 Part One of this chapter explains that
distinction: in brief, the monist-dualist divide hinges on the role of the legislative branch in
incorporating and implementing treaties domestically. Although the monist-dualist framework
helps illuminate important formal differences among states, Part One suggests that scholarly
preoccupation with the formal distinction between monism and dualism tends to obscure key
functional differences among states.
Hence, the remainder of the chapter adopts a functional approach, focusing primarily on
the role of domestic courts in promoting compliance with treaty obligations and protecting
treaty-based private rights. Part Two explains the distinction between horizontal, vertical and
transnational treaty provisions. Part Three addresses the functional distinction between
nationalist and transnationalist approaches to judicial application of treaties. Part Four discusses
the crucial role of domestic courts in promoting compliance with treaty obligations, especially
transnational and vertical treaty obligations.
Professor of Law, Director of the Center for Global Law and Policy, Santa Clara University School of Law.
1 See United Nations Treaty Series Cumulative Index <http://treaties.un.org/Pages/CumulativeIndexes.aspx>
accessed 29 December 2010. In contrast, states concluded about 16,000 treaties during the nineteenth century. See
John Fabian Witt, ‗Internationalism and the Dilemmas of Strategic Patriotism‘ (2006) 41 Tulsa L. Rev. 787, 791. 2 Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (adopted 29 May
1993, entered into force 1 May 1995) 1870 UNTS 167. 3 See Status Table, Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption
<http://www.hcch.net/index_en.php?act=conventions.status&cid=69> accessed 29 December 2010. 4 See, e.g., International Covenant on Civil and Political Rights (adopted 16 December 1966) 999 UNTS 171.
5 See, e.g., Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (adopted 12
August 1949) 75 UNTS 135. 6 See, e.g., Protocol Relating to the Status of Refugees (adopted 31 January 1967) 606 UNTS 267.
7 See infra notes 8-15 and accompanying text.
Electronic copy available at: http://ssrn.com/abstract=1826102Electronic copy available at: http://ssrn.com/abstract=1826102
2
The functional analysis in Parts Two to Four shows that domestic courts play a key role
in protecting private rights under transnational treaty provisions and promoting compliance with
those provisions, but they play virtually no role in promoting compliance with horizontal treaty
provisions. This is generally true for both monist and dualist states. The story with respect to
vertical treaty provisions is more complicated. When domestic courts adopt a transnationalist
approach, they play a key role in protecting private rights under vertical treaty provisions and
promoting compliance with those provisions. When domestic courts adopt a nationalist
approach, vertical treaty provisions may be under-enforced. There does not appear to be any
significant correlation between a state‘s formal classification as monist or dualist and the
tendency of domestic courts in that state to function in a nationalist or transnationalist mode.
I.
Monism and Dualism
The terms ‗monism‘ and ‗dualism‘ generate considerable confusion because there is no
single, agreed definition of the terms. Some scholars employ the terms to describe contrasting
theoretical perspectives on the relationship between international and domestic law.8 Used in this
sense, dualism ‗points to the essential difference of international law and municipal law,
consisting primarily in the fact that the two systems regulate different subject-matter‘.9 In
contrast, monism holds that ‗international and municipal law are part of the same system of
norms‘.10
Some monist theorists assert ‗the supremacy of international law‘ over domestic law,
but this is not an essential feature of monist theory.11
Other scholars employ the terms monism and dualism to describe different types of
domestic legal systems.12
Used in this sense, dualist states are states in which ‗the constitution ...
accords no special status to treaties; the rights and obligations created by them have no effect in
domestic law unless legislation is in force to give effect to them‘.13
In contrast, ‗[t]he essence of
the monist approach is that a treaty may, without legislation, become part of domestic law once it
has been concluded in accordance with the constitution and has entered into force for the state‘.14
As Professor Aust correctly notes, many national constitutions ‗contain both dualist and monist
elements‘.15
This chapter uses the terms monism and dualism in the second sense, to describe different
types of domestic legal systems. Dualist states are states in which no treaties have the status of
law in the domestic legal system; all treaties require implementing legislation to have domestic
8 See, e.g., Ian Brownlie, Principles of Public International Law (7
th edn OUP, Oxford 2008) 31–33.
9 ibid 31.
10 ibid 32.
11 See ibid 32–33 (discussing Kelsen‘s and Lauterpacht‘s theories).
12 See, e.g., Anthony Aust, Modern Treaty Law and Practice (CUP, Cambridge 2007) 181–95.
13 ibid 187.
14 ibid 183.
15 ibid 182.
3
legal force.16
Monist states are states in which some treaties have the status of law in the
domestic legal system, even in the absence of implementing legislation.17
In most monist states,
there are some treaties that require implementing legislation and others that do not. There is
substantial variation among monist states as to which treaties require implementing legislation.
Moreover, monist states differ considerably in terms of the hierarchical rank of treaties within
the domestic legal order. Despite these variations, all monist states have one common feature: at
least some treaties have the status of law within the domestic legal order.
The question whether a treaty requires legislative implementation after the treaty enters
into force internationally must be distinguished from the question whether legislative approval is
necessary prior to treaty ratification. In most dualist states, the executive has the constitutional
authority to conclude treaties that bind the nation under international law without obtaining prior
legislative approval.18
The executive‘s power to conclude treaties without prior legislative
approval helps explain why, in dualist states, implementing legislation is necessary to grant
treaties domestic legal force. In most monist states, though, the constitution requires legislative
approval for at least some treaties before the executive can make an internationally binding
commitment on behalf of the nation.19
The fact that the legislature approves (some) treaties
before they become binding on the nation helps explain why, in monist states, some treaties have
the status of domestic law even in the absence of implementing legislation. In sum, in both
monist and dualist states, it is rare for a treaty to have domestic legal force unless the legislature
has acted either to approve the treaty before international entry into force, or to implement the
treaty after international entry into force.20
The following sections summarize key features of monist and dualist systems. The
analysis touches upon the domestic legal systems of twenty-one states, relying heavily on two
previously published volumes that present a comparative analysis of national treaty law.21
Those
twenty-one states include five dualist states: Australia, Canada, India, Israel and the United
Kingdom. The other sixteen (monist) states are: Austria, Chile, China, Columbia, Egypt, France,
Germany, Japan, Mexico, Netherlands, Poland, Russia, South Africa, Switzerland, Thailand, and
the United States.
A. Dualist States
Almost all the British Commonwealth states follow the dualist approach for treaties.22
Apart from Commonwealth states, Israel, Denmark and other Nordic states also follow a dualist
16
In many dualist states, customary international law has domestic legal force, even in the absence of implementing
legislation. See, e.g., Nihal Jayawickrama, ‗India‘ in David Sloss (ed), The Role of Domestic Courts in Treaty
Enforcement: A Comparative Study (CUP, Cambridge 2009) 244–45. 17
These definitions arguably constitute a slight departure from standard terminology. However, these definitions
have the advantage of drawing a clear distinction between monism and dualism. Applying these definitions, almost
all states can be neatly classified as either monist or dualist, without any significant overlap between the categories. 18
See infra note 25. 19
See infra note 72 and accompanying text. 20
See Duncan B. Hollis, ‗A Comparative Approach to Treaty Law and Practice‘ in Duncan B. Hollis, Merritt R.
Blakeslee & L. Benjamin Ederington (eds), National Treaty Law and Practice (Martinus Nijhoff, Leiden, Boston
2005) 32–45 [hereinafter National Treaty Law]. 21
See National Treaty Law (n 20); Sloss (n 16). 22
See Aust (n 12) 194–95.
4
approach.23
The key distinguishing feature of dualism is that no treaties have the formal status of
law in the domestic legal system unless the legislature enacts a statute to incorporate the treaty
into domestic law.24
Such statutes must be distinguished from legislative acts that authorize the
executive to make a binding international commitment. In dualist states, the executive typically
has the constitutional authority to make a binding international commitment on behalf of the
nation without obtaining prior legislative approval.25
However, in many dualist states the
executive consults with the legislature before concluding ‗important‘ treaties.26
(There is
considerable variation among states concerning which treaties qualify as ‗important‘.) Moreover,
if legislation is needed to ensure that government officials have the requisite authority to
implement a treaty, dualist states usually enact the necessary implementing legislation before the
treaty enters into force internationally.27
For courts in dualist states, there is a crucial distinction between incorporated and
unincorporated treaties. As a formal matter, courts in dualist states have no authority to apply
treaties directly as law. If the legislature has enacted a statute to incorporate a particular treaty
provision into national law, courts apply the statute as law;28
they frequently consult the
underlying treaty to help construe the meaning of the statute.29
Thus, in dualist states, courts
apply treaties indirectly, not directly. However, one should not overstate the difference between
direct and indirect application. In practice, courts can achieve roughly the same results, whether
they apply the treaty directly or indirectly. Either way, judges who are receptive to the domestic
judicial application of treaties can use their judicial power to protect the treaty-based rights of
private parties and promote compliance with national treaty obligations.30
Dualist states employ a variety of methods for incorporating treaties into national law.31
In the United Kingdom, for example: the text of a treaty may be attached to a statute stipulating
that the attached treaty provisions ‗shall have the force of law in the United Kingdom‘;32
Parliament may pass an Act granting government officials ‗all the powers necessary to carry out
23
See ibid. 24
See Donald R. Rothwell, ‗Australia‘ in Sloss (n 16) 128–30; Maurice Copithorne, ‗National Treaty Law and
Practice: Canada‘ in National Treaty Law (n 20) 95–101; Dr. K. Thakore, ‗National Treaty Law and Practice: India‘
in National Treaty Law (n 20) 351; Ruth Lapidoth, ‗National Treaty Law and Practice: Israel‘ in National Treaty
Law (n 20) 396; and Sir Ian Sinclair, Susan J. Dickson and Graham Maciver, ‗National Treaty Law and Practice:
United Kingdom‘ in National Treaty Law (n 20) 733. 25
See Copithorne (n 24) 91–94 (Canada); Lapidoth (n 24) 385–90 (Israel); Rothwell (n 24) 128–30 (Australia);
Sinclair and others (n 24) 727 (United Kingdom); and Thakore (n 24) 352–55 (India). 26
See Copithorne (n 24) 96, 98 (Canada); Lapidoth (n 24) 388–89, 393–94 (Israel); Sinclair and others (n 24) 737–
39 (United Kingdom); and Thakore (n 24) 365–66 (India). 27
See Copithorne (n 24) 96 (Canada); Lapidoth (n 24) 396–98 (Israel); Sinclair and others (n 24) 742 (United
Kingdom); and Thakore (n 24) 359–60 (India). 28
See, e.g., Anthony Aust, ‗United Kingdom‘ in Sloss (n 16) 486; Rothwell (n 24) 138–41 (Australia); and Gib van
Ert, ‗Canada‘ in Sloss (n 16) 202–04. 29
See, e.g., Aust (n 28) 482–83 (United Kingdom); Jayawickrama (n 16) 264–66 (India); David Kretzmer, ‗Israel‘
in Sloss, (n 16) 290–92 (Israel); Rothwell (n 24) 138–41 (Australia); and van Ert (n 28) 175–82 (Canada). 30
See generally David Sloss, ‗Treaty Enforcement in Domestic Courts: A Comparative Analysis‘ in Sloss (n 16) 8–
43 (analyzing the practice of national courts in eleven states). 31
See, e.g., Kretzmer (n 29) 283–85 (Israel); Rothwell (n 24) 159–60 (Australia); and van Ert (n 28) 169–71
(Canada). 32
Aust (n 12) 189.
5
obligations under an existing or future treaties‘;33
or Parliament may pass an Act authorizing the
Crown to enact regulations to implement one or more treaties.34
Given the wide variety of
techniques that dualist states utilize to incorporate treaties,35
the question whether a particular
treaty provision has been incorporated is often ambiguous.36
The Australian High Court developed a creative approach to addressing this type of
ambiguous situation, which commentators have dubbed ‗quasi-incorporation‘.37
The term refers
to situations where ‗government departments, and administrative decision makers are given [a
statutory directive] to take into account the provisions of ... international instruments to which
Australia is a party‘.38
For example, in the Project Blue Sky case,39
an Australian statute
specifically directed the Australian Broadcasting Authority (ABA) ‗to perform its functions in a
manner consistent with ―Australia‘s obligations under any ... agreement between Australia and a
foreign country‖‘.40
The petitioners argued that the ABA had violated the statute by enacting
regulations inconsistent with a bilateral free-trade agreement between Australia and New
Zealand.41
A three-judge panel of the Federal Court held that ‗the ABA was not bound to take
into account‘ the free-trade agreement because that agreement conflicted with a different
statutory provision.42
The High Court reversed, holding ‗that the ABA was precluded from
making a standard inconsistent with the‘ free-trade agreement, even though that agreement had
not been directly incorporated into Australian domestic law.43
Courts in other dualist states have
adopted a similar approach. In the United Kingdom, for example, petitioners in several cases
have obtained judicial remedies by invoking statutes that required administrative decision
makers to exercise their authority in conformity with treaty obligations that had not been directly
incorporated into domestic law.44
More surprisingly, courts in dualist states have developed a variety of strategies for
judicial application of unincorporated treaties — even in the absence of any statutory directive
33
ibid 190. 34
ibid 190–91. 35
See, e.g., Aust (n 28) 479–81 (United Kingdom) (discussing, among others, Cheng v Conn, Inspector of Taxes
[1968] 1 All ER 779); Kretzmer (n 29) 283–85 (Israel); Rothwell (n 24) 158–60 (Australia) (discussing Project Blue
Sky Inc v Australian Broadcasting Auth (1998) 153 ALR 490); and van Ert (n 28) 169–71 (Canada) (discussing,
among othters, Pan American World Airways v The Queen [1981] 2 SCR 565; Schavernoch v Foreign Claims
Commission [1982] 1 SCR 1092). 36
See, e.g., van Ert (n 28) 171 (stating ‗that the absence of formal rules on how treaties are implemented can create
uncertainty about whether treaties have been implemented at all‘). 37
See Rothwell (n 24) 158–64. 38
ibid 159. 39
Project Blue Sky Inc. v Australian Broadcasting Auth. (1998) 153 ALR 490. 40
Rothwell (n 24) 141 (quoting Broadcasting Services Act 1992). 41
ibid 141–42. 42
ibid 143. 43
ibid 143–45. 44
See Aust (n 28) 490–91 (noting that ‗there have been numerous successful challenges by way of judicial review to
[administrative] decisions on claims to refugee status‘); ibid 491–92 (discussing Secretary of State for Foreign &
Commonwealth Affairs v Quark Fishing Ltd [2002] EWCA Civ 1409; [2002] AER (D) 450 holding that the Director
of Fisheries of South Georgia and the South Sandwich Islands ‗had not properly carried out his statutory powers‘
because he failed to take account of relevant treaty provisions).
6
for government officials to take account of treaty provisions.45
In Australia, for example, the
High Court held in Minister of State for Immigration and Ethnic Affairs v Teoh46
that
administrative decision makers must exercise their statutory discretion in conformity with the
Convention on the Rights of the Child, an unincorporated treaty, because treaty ratification
meant that individuals had a ‗legitimate expectation‘ that government officials would act in
accordance with the treaty.47
The Canadian Supreme Court has declined to follow this so-called
legitimate expectations doctrine.48
Even so, the Canadian Supreme Court has held that
administrative decision makers in Canada, like their Australian counterparts, must exercise their
statutory discretion in conformity with the Convention on the Rights of the Child, an
unincorporated treaty.49
In Israel, ‗it has now become standard practice for the Supreme Court to‘
apply Geneva Convention IV in cases involving the Occupied Territories, although the
Convention has not been incorporated into domestic law.50
The Court justifies this approach by
citing the government‘s political commitment to ‗respect the humanitarian provisions of the
Convention‘.51
Similarly, the Indian Supreme Court routinely applies unincorporated treaties to
support its interpretation of both statutory and constitutional provisions;52
the Court has also
applied treaties to support its progressive development of common law principles.53
This increasing judicial reliance on unincorporated treaties by courts in dualist states
blurs the traditional distinction between monist and dualist states.54
Nevertheless, judges in
dualist states periodically invoke the dualist dogma that courts are powerless to apply treaties
unless the legislature has expressly incorporated the treaty into domestic law.55
Hence, there
remains an uneasy tension between the formalities of strict dualist doctrine and the practical
reality that courts in dualist states have developed a variety of strategies to facilitate judicial
application of unincorporated and partially incorporated treaties.
B. Monist States
45
See Michael P. Van Alstine, ‗The Role of Domestic Courts in Treaty Enforcement: Summary and Conclusions‘ in
Sloss (n 16) 608–12. 46
(1995) 128 ALR 353. 47
See Rothwell (n 24) 146–48 (quoting Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 128
ALR 353). 48
See van Ert (n 28) 173 (discussing Baker v Canada (1999) 2 SCR 817). 49
See ibid 194–97 (discussing Baker v Canada (1999) 2 SCR 817). 50
See Kretzmer (n 29) 305–10 (discussing, among others, HCJ 3278/02, Hamoked The Center for the Defense of the
Individual v IDF Commander 57 P.D. (1) 385). 51
ibid 309–10 (discussing HCJ 3278/02, Hamoked The Center for the Defense of the Individual v IDF Commander
57 P.D. (1) 385; HCJ 7862/04, Abu Dahar v IDF Commander 59 P.D. (5) 368). 52
See Jayawickrama (n 16) 247–64 (discussing, among others, Jolly George Verhese v Bank of Cochin (1980) 2
SCR 913; Transmission Coprporation of Andhra Pradesh v Ch. Prabhakar Supreme Court of India, Civil Appeal
6131 of 2002, 26 May 2004). 53
See ibid 255–56 (discussing MV Elisabeth v Harwan Investment and Trading Pvt Ltd [1992] 1 SCR 1003). 54
See Melissa A. Waters, ‗Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human
Rights Treaties‘ (2007) 107 Colum. L. Rev. 628. 55
See, e.g., Ben Saul, ‗The Kafka-esque Case of Sheikh Manour Leghaei: The Denial of the International Human
Right to a Fair Hearing in National Security Assessments and Migration Proceedings in Australia‘ (2010) Sydney
Law School, Legal Studies Research Paper No. 10/111 <http://ssrn.com/abstract=1701374> accessed 27 March
2011.
7
The key distinguishing feature of monist legal systems, as defined herein, is that at least
some treaties are incorporated into the domestic legal order without the need for any legislative
act, other than the act authorizing the executive to conclude the treaty. Under this definition,
Austria,56
Chile,57
China,58
Columbia,59
Egypt,60
France,61
Germany,62
Japan,63
Mexico,64
the
Netherlands,65
Poland,66
Russia,67
South Africa,68
Switzerland,69
Thailand,70
and the United
States71
all have monist legal systems. In all sixteen states, some form of legislative approval is
required for at least some types of treaties before the executive is authorized to make a binding
international commitment on behalf of the nation.72
Despite these similarities, there are
substantial differences among these states concerning the application of treaties within their
national legal systems.
One significant area of variability concerns the types of treaties that require legislative
approval before international entry into force of the treaty.73
In Mexico and Colombia, all treaties
require prior legislative approval.74
Chile, the Netherlands, South Africa, and Switzerland
establish a default rule that treaties ordinarily require legislative approval, but they recognize
certain exceptions to that rule.75
In other states, legislative approval is required only for
designated categories of treaties.76
56
See Franz Cede & Gerhard Hafner, ‗National Treaty Law and Practice: Republic of Austria‘ in National Treaty
Law (n 20) 59–60, 67–68. 57
See Francisco Orrego Vicuna & Francisco Orrego Bauzá, ‗National Treaty Law and Practice: Chile‘ in National
Treaty Law (n 20) 136–38. 58
See Xue Hanqin, Hu Zhiqiang & Fan Kun, ‗National Treaty Law and Practice: China‘ in National Treaty Law (n
20) 163–64. 59
See Germán Cavelier, ‗National Treaty Law and Practice: Colombia‘ in National Treaty Law (n 20) 205. 60
See Nabil Elaraby, Mohammed Gomaa, & Lamia Mekhemar, ‗National Treaty Law and Practice: Egypt‘ in
National Treaty Law (n 20) 238–39. 61
See Pierre Michel Eisemann & Raphaële Rivier, ‗National Treaty Law and Practice: France‘ in National Treaty
Law (n 20) 265–67. 62
See Dr. Hubert Beemelmans & Dr. Hans D. Treviranus, ‗National Treaty Law and Practice: Federal Republic of
Germany‘ in National Treaty Law (n 20) 323–26. 63
See Takao Kawakami, ‗National Treaty Law and Practice: Japan‘ in National Treaty Law (n 20) 424–25. 64
See Dr. Luis Miguel Díaz, ‗National Treaty Law and Practice: Mexico‘ in National Treaty Law (n 20) 451. 65
See J.G. Brouwer, ‗National Treaty Law and Practice: The Netherlands‘ in National Treaty Law (n 20) 497–99. 66
See Lech Garlicki, Malgorzata Masternak-Kubiak, & Krzysztof Wójtowicz, ‗Poland‘ in Sloss (n 16) 378. 67
See W.E. Butler, ‗National Treaty Law and Practice: Russia‘ in National Treaty Law (n 20) 554–56. 68
See N.J. Botha, ‗National Treaty Law and Practice: South Africa‘ in National Treaty Law (n 20) 600–02. 69
See Luzius Wildhaber, Adrian Scheidegger, & Marc D. Schinzel, ‗National Treaty Law and Practice: Switzerland‘
in National Treaty Law (n 20) 658–59. 70
See Sompong Sucharitkul, ‗National Treaty Law and Practice: Thailand‘ in National Treaty Law (n 20) 706. 71
See Robert E. Dalton, ‗National Treaty Law and Practice: United States‘ in National Treaty Law (n 20) 788–90. 72
See Beemelmans & Treviranus (n 62) 323–26 (Germany); Botha (n 68) 590–92 (South Africa); Brouwer (n 65)
489–91 (the Netherlands); Butler (n 67) 544–47 (Russia); Cavelier (n 59) 199 (Colombia); Cede & Hafner (n 56)
64–65 (Austria); Dalton (n 71) 770–74 (United States); Díaz (n 64) 447–48 (Mexico); Eisemann & Rivier (n 61)
258–60 (France); Elaraby and others (n 60) 231 (Egypt); Garlicki and others (n 66) 376–77 (Poland); Hanqin and
others (n 58) 161–62 (China); Kawakami (n 63) 419–20 (Japan); Sucharitkul (n 70) 701–03 (Thailand); Vicuna &
Bauzá (n 57) 127–30 (Chile); and Wildhaber and others (n 69) 644–48 (Switzerland). 73
For a tabular depiction of the variability in this area, see Hollis ‗Comparative Approach‘ (n 20) 33. 74
See Cavelier (n 59) 199 (Colombia); Díaz (n 64) 447–48 (Mexico). 75
See Botha (n 68) 586–92 (South Africa); Brouwer (n 65) 489–91 (the Netherlands); Vicuna & Bauzá (n 57) 123–
24 (Chile); and Wildhaber and others (n 69) 644–51 (Switzerland). 76
See Hollis, ‗Comparative Approach‘ (n 20) 32–37.
8
Another significant area of variability relates to publication requirements. In Egypt,
France, Chile, Japan, and Russia, a treaty that has entered into force internationally lacks
domestic legal force until the executive branch publishes or promulgates the treaty
domestically.77
In other monist states, though, (at least some) treaties enter into force
domestically at the same time they enter into force internationally, without the need for any
additional steps.78
There is also significant variation among monist states concerning the hierarchical rank
of treaties within the domestic legal order. In Austria, Egypt, Germany, and the United States,
treaties are equivalent to statutes; they rank lower than the Constitution.79
In South Africa,
treaties rank lower than statutes.80
In China, France, Japan, Mexico, and Poland, (at least some)
treaties rank higher than statutes but lower than the Constitution.81
In the Netherlands, some
treaties rank higher than the Constitution.82
In Chile, Russia and Switzerland, the hierarchical
rank of treaties is contested, but it is undisputed that at least some treaties rank higher than
statutes,83
and there is some authority for the proposition that some treaties have constitutional
rank.84
In many monist states, even if a treaty has the formal status of law in the absence of
implementing legislation, the legislature sometimes enacts legislation to help ensure that courts
and executive officers give practical effect to the treaty within the national legal system. Thus,
for example, the United States enacted implementing legislation for the New York Convention,85
and South Africa enacted implementing legislation for the Warsaw Convention.86
As Professor
77
See Butler (n 67) 552–54 (Russia); Eisemann & Rivier (n 61) 265–67 (France); Elaraby and others (n 60) 238–39
(Egypt); Kawakami (n 63) 424–25 (Japan); Vicuna & Bauzá (n 57) 136–38 (Chile). 78
See Hollis, ‗Comparative Approach‘ (n 20) 41–42. 79
See Cede & Hafner (n 56) 59–60, 67–68 (Austria); Dalton (n 71) 789–90 (United States); Elaraby and others (n
60) 238–39 (Egypt); Andreas L. Paulus, ‗Germany‘ in Sloss (n 16) 214–18. In both Austria and Germany, treaties
approved by the legislature have the rank of statutes, but treaties concluded without legislative approval have a
lower rank. See Cede & Hafner (n 56) 67–68; Paulus, ‗Germany‘ in Sloss (n 16) 214–18. In the United States,
though, there is at least some authority for the proposition that treaties concluded without legislative approval have
the same rank as treaties approved by the legislature. See United States v Pink 315 US 203, 62 S Ct 552 (1942);
United States v Belmont 301 US 324, 57 S Ct 758 (1937). 80
This follows directly from Article 231(4) of the South African Constitution, which states: ‗Any international
agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing
provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with
the Constitution or an Act of Parliament‘. 81
See Díaz (n 64) 451–54 (Mexico); Eisemann & Rivier (n 61) 263–67 (France); Garlicki and others (n 66) 376–79
(Poland); Hanqin and others (n 58) 163–65 (China); and Timothy Webster, ‗International Human Rights Law in
Japan: The View at Thirty‘ (2010) 23 Colum. J. Asian L. 241, 245. 82
See Brouwer (n 65) 498–99. 83
See Butler (n 67) 554–56 (Russia); Vicuna & Bauzá (n 57) 138–39 (Chile); and Wildhaber and others (n 69) 658–
64 (Switzerland). 84
See Butler (n 67) 556 (contending that ‗[t]he primacy of international treaties of the Russian Federation extends to
Federal laws, including constitutional laws‘.); Vicuna & Bauzá (n 57) 139 (noting that, in one view, human rights
treaties ‗now have in Chile a ranking above that of ordinary statutes and at least equal to the Constitution‘); and
Wildhaber and others (n 69) 662 (Switzerland) (‗Treaties in conflict with federal constitutional law have to be
applied irrespective of their unconstitutionality‘.). 85
See Federal Arbitration Act 1970 ss 201–08 (implementing the New York Convention). 86
See John Dugard, ‗South Africa‘ in Sloss (n 16) 470.
9
Nollkaemper observes: ‗[E]ven if the provisions of a treaty could in principle be applied directly,
the Netherlands usually chooses to convert them into national legislation to harmonize Dutch law
with the requirements of international law‘.87
All monist states recognize the possibility, at least theoretically,88
that domestic courts
can apply (at least some) treaties directly as law.89
Indeed, this is one of the crucial differences
between monist and dualist systems: dualist states permit only indirect judicial application of
treaties, whereas monist states permit direct judicial application in some cases. Despite this
formal distinction, however, there are several reasons why judicial practice exhibits many
similarities between monist and dualist states. First, as noted above, courts in dualist states apply
various strategies to facilitate judicial application of unincorporated and partially incorporated
treaties.90
Second, courts in monist states often apply treaties indirectly as an aid to statutory or
constitutional interpretation, rather than applying treaties directly as rules of decision to resolve
disputed issues.91
It is difficult to measure the relative frequency of direct versus indirect
application, but there is some evidence that courts even in monist states rely more heavily on
indirect than direct application.92
Indeed, courts may prefer indirect application ‗in cases where
the direct application of international law would conflict with national law‘ because ‗[c]ourts
usually prefer a conciliatory solution over the acknowledgment and resolution of a conflict of
law‘.93
Insofar as courts in monist states prefer indirect rather than direct application, this further
erodes the practical significance of the traditional distinction between monist and dualist states.
Finally, in certain monist states, courts have articulated a distinction between ―self-
executing‖ and ―non-self-executing‖ treaties.94
When domestic courts decide that a treaty is
―non-self-executing,‖ they sometimes behave as if the treaty has not been incorporated into
domestic law even though the treaty, as a formal matter, has the status of law within the domestic
legal system.95
Thus, just as judicial practice in some dualist states blurs the monist-dualist
divide by applying unincorporated treaties as if they were incorporated, judicial practice in some
87
André Nollkaemper, ‗The Netherlands‘ in Sloss (n 16) 335. 88
The South African Constitution expressly contemplates a category of self-executing treaties, but South African
courts have not yet held that any particular treaty is self-executing. See Dugard (n 86) 453–55. 89
See William E. Butler, ‗Russia‘ in Sloss (n 16) 410–11; Cede & Hafner (n 56) 69 (Austria); Dalton (n 71) 788–90
(United States); Díaz (n 64) 454 (Mexico); Eisemann & Rivier (n 61) 265–70 (France); Elaraby and others (n 60)
238–39 (Egypt); Garlicki and others (n 66) 400–04 (Poland); Hanqin and others (n 58) 163–65 (China);
Nollkaemper (n 87) 341–48 (the Netherlands); Paulus (n 79) 209–12 (Germany); Vicuna & Bauzá (n 57) 136–39
(Chile); Webster (n 81) 244–47 (Japan); and Wildhaber and others (n 69) 644–48 (Switzerland). 90
See supra notes 37-53 and accompanying text. 91
See, e.g., Dugard (n 86) 457–63 (South Africa); Garlicki and others (n 66) 403–04 (Poland); Nollkaemper (n 87)
348–51 (the Netherlands); Paulus (n 79) 209–10 (Germany); and David Sloss, ‗United States‘ in Sloss (n 16) 526–
27. 92
See, e.g., Garlicki and others (n 66) 404 (stating that ‗the most typical technique [in Poland] is that of
coapplication of an international norm and a domestic norm‘). 93
Nollkaemper (n 87) 349. 94
See infra notes 161-77 and accompanying text. 95
In the United States, for example, courts behave as if non-self-executing treaties are unincorporated, even though
the Constitution states expressly that ―all treaties‖ are ―the supreme Law of the Land.‖ See Sloss, ‗United States‘ (n
91) 509–14, 527-29, 534-39.
10
monist states blurs the monist-dualist divide by handling formally incorporated treaties as if they
were unincorporated.
II.
Horizontal, Transnational and Vertical Treaty Provisions
To appreciate the role of domestic courts in treaty application, it is important to
understand the nature of modern treaties. There is a widespread misconception that treaties focus
exclusively, or almost exclusively, on regulating horizontal relations among states. This was
never really true,96
and it is certainly not true in the twenty-first century. States conclude treaties
to regulate three different types of relationships: horizontal relations between and among states,
vertical relations between states and private actors (including natural persons and corporations),
and transnational relations between private actors who interact across national boundaries.97
The
role of domestic courts in applying treaties varies greatly depending on whether the treaty
provision at issue is horizontal, vertical or transnational.98
Domestic courts rarely apply treaties that regulate horizontal relationships among states.
If one state believes that another state has violated a horizontal treaty obligation, the complainant
might raise the issue in diplomatic negotiations, or perhaps file suit in an international tribunal,
but it would be unusual for the complainant to file suit in a domestic court. Domestic courts
typically dismiss cases in which private litigants file suit to resolve disputes that are properly
characterized as horizontal disputes between states, because domestic courts generally lack the
institutional competence to adjudicate such disputes. For example, a group of Serbian citizens
sued the Dutch government in a domestic court in the Netherlands, alleging that the government
violated Article 2(4) of the U.N. Charter by supporting the NATO bombing of Yugoslavia in
1999. The Supreme Court of the Netherlands held that plaintiffs were not entitled to invoke
Article 2(4) in a Dutch court.99
U.S. Supreme Court Chief Justice Marshall made a similar point
two centuries ago. Speaking as a Member of Congress (before he was appointed to the Supreme
Court), he asserted that a treaty-related claim falls within the scope of judicial competence where
parties ‗come into court, who can be reached by its process, and bound by its power ... to which
they are bound to submit‘.100
However, in a case where ‗[t]he parties were the two nations ... the
demand is not a case for judicial cognizance‘101
because sovereign nations are generally not
bound to submit to the power of domestic courts.
In contrast to horizontal treaties, domestic courts routinely apply transnational treaty
provisions that regulate cross-border relationships between private actors. Such treaties include,
96
See, e.g., David Sloss, ‗When Do Treaties Create Individually Enforceable Rights?‘ (2006) 45 Colum. J. Trans‘l
L. 20, 51–91 (analyzing U.S. Supreme Court‘s application of vertical and transnational treaty provisions between
1789 and 1838). 97
A separate category of treaties involves agreements between States and international organizations. Such treaties
involve horizontal provisions (such as a nation‘s obligation to make financial contributions) and vertical provisions
(such as immunities for employees of international organizations). Treaties between states and international
organizations do not generally include transnational provisions. 98
In assessing whether a particular treaty provision is properly characterized as horizontal, vertical, or transnational,
it is important to examine the specific provision at issue because a single treaty may contain a combination of
horizontal, vertical and transnational provisions. 99
See Nollkaemper (n 87) 347. 100
10 Annals of Cong. 613 (1800). 101
ibid.
11
for example, the 1958 New York Convention,102
the 1999 Montreal Convention,103
and the 1980
Hague Convention on Child Abduction.104
Although states negotiated and ratified these treaties,
they are designed primarily to regulate cross-border relationships among private actors, not
horizontal relationships among states. The New York Convention provides rules for recognition
and enforcement of arbitral awards arising from transnational commercial activities. The
Montreal Convention governs relationships between airlines and their customers: both
passengers and shippers. The Hague Convention applies to child custody disputes in which one
parent transports a child across national boundaries. For these and other transnational treaties,
domestic courts play a vital role in ensuring that private actors behave in accordance with
internationally agreed rules regulating cross-border activities. Indeed, domestic courts are
arguably the primary enforcers of transnational treaty obligations because most international
tribunals lack jurisdiction to adjudicate private disputes involving alleged infractions of
transnational treaty provisions.105
Moreover, such disputes rarely have sufficient political
salience to become the subject of interstate diplomacy.
The preceding comments apply equally to monist and dualist states. Although there are
significant formal distinctions between monist and dualist states (as discussed in Part One
above), there are few, if any, functional distinctions. In both monist and dualist states, domestic
courts rarely apply horizontal treaty provisions, but they routinely apply transnational treaty
provisions.
The most significant differences among states relate to the judicial application of vertical
treaty provisions — provisions that regulate relations between states and private parties.
Prominent examples of vertical treaty provisions include the Covenant on Civil and Political
Rights (which protects the civil and political rights of citizens in relation to their own
governments)106
and the Refugee Protocol (which protects the rights of individuals who have
fled persecution in their home countries to seek asylum in other countries).107
Domestic courts in
both monist and dualist states apply vertical treaty provisions more frequently than they apply
horizontal treaty provisions because, in most mature legal systems, domestic courts have an
institutional responsibility to protect the rights of private parties, and vertical treaties (unlike
horizontal treaties) create rights for private parties.
Whereas both vertical and transnational treaty provisions implicate the rights of private
parties — and therefore invite judicial application of treaties — vertical treaty provisions
implicate the public functions of government in a way that is not true for transnational treaty
102
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958) 330 UNTS
38. 103
Convention for the Unification of Certain Rules for International Carriage by Air (adopted 28 May 1999) 2242
UNTS 309. 104
Convention on the Civil Aspects of International Child Abduction (adopted 25 October 1980) 1343 UNTS 89. 105
Arbitral panels established pursuant to bilateral investment treaties frequently adjudicate disputes between states
and private corporations but – in contrast to international commercial arbitration – investment treaty arbitration
typically involves vertical treaty provisions, not transnational treaty provisions. The International Court of Justice
occasionally adjudicates disputes that originated as transnational, commercial disputes between private parties. See,
e.g., Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v Switzerland) ICJ
Press Release 2009/36. However, these types of transnational, private disputes rarely give rise to ICJ jurisdiction. 106
International Covenant on Civil and Political Rights (n 4). 107
Protocol Relating to the Status of Refugees (n 6).
12
provisions. For example, the Refugee Protocol regulates the public functions of government by
creating legal (vertical) duties that the government owes to individuals who claim refugee status
under the treaty. In contrast, the 1999 Montreal Convention108
regulates the cross-border
commercial activities of airlines, including state-owned airlines, but it does not create significant
new duties for governments in the exercise of traditional public functions.
This distinction between vertical and transnational treaty provisions helps explain the
distinction between nationalist and transnationalist approaches to the judicial application of
treaties. ‗Transnationalist‘ decisions manifest a belief that the judiciary has an independent
responsibility to ensure that domestic government officials act in accordance with international
treaty obligations. ‗Nationalist‘ decisions manifest a belief that courts should not scrutinize too
closely government conduct that is arguably inconsistent with international treaty obligations. In
countries where courts adopt a more ―transnationalist‖ approach — such as South Africa109
and
the Netherlands110
— domestic courts apply both vertical and transnational treaty provisions with
equal vigor. However, in states where courts adopt a more ―nationalist‖ approach — such as the
United States111
and Israel112
— domestic courts are hesitant to apply vertical treaty provisions,
even though they routinely apply transnational provisions.113
The contrast between nationalist and transnationalist approaches manifests different
judicial attitudes about the relative weight assigned to two competing factors: the judicial
responsibility to protect the rights of private parties and the judicial responsibility to refrain from
interfering with public governmental functions.114
Transnationalist judges assign greater weight
(implicitly, if not explicitly) to the judicial responsibility to protect the rights of private parties,
including rights vis-à-vis government actors protected by vertical treaty provisions. Nationalist
judges assign greater weight (again implicitly, if not explicitly) to the judicial responsibility to
defer to the political branches‘ judgment about how best to interpret and apply vertical treaty
provisions. It bears emphasis that the distinction between nationalist and transnationalist
approaches is best conceptualized as a spectrum with multiple shades of gray, not a sharp line
separating black and white.
One might think that courts in monist states are more transnationalist and courts in dualist
states are more nationalist. In fact, though, there is not any significant correlation along these
lines. Courts in dualist states sometimes adopt a transnationalist approach and courts in monist
states sometimes adopt a nationalist approach.115
Hence, the monist-dualist dichotomy cannot
108
Convention for the Unification of Certain Rules for International Carriage by Air (n 102). 109
See Dugard (n 86) 448–75. 110
See Nollkaemper (n 87) 326–69. 111
See Sloss, ‗United States‘ (n 91) 504–54. 112
See Kretzmer (n 29) 273–325. 113
For more detailed analysis, see Sloss, ‗Treaty Enforcement‘ (n 30) 1–60; see also Van Alstine (n 45) 555–613. 114
See Paul B. Stephan, ‗Treaties in the Supreme Court, 1946–2000‘ in David L. Sloss, Michael D. Ramsey, and
William S. Dodge (eds), International Law in the U.S. Supreme Court: Continuity and Change (CUP, Cambridge
2011) [hereinafter Intl Law in the U.S. Supreme Court] (discussing U.S. Supreme Court‘s reluctance to apply
treaties in a manner that would constrain the executive branch in its exercise of public governmental functions). 115
No state is purely nationalist and no state is purely transnationalist. However, courts in some states have more
nationalist tendencies and courts in other states have more transnationalist tendencies. See Sloss, ‗Treaty
Enforcement‘ (n 30). To obtain more accurate information, a detailed, multi-state empirical study is needed. No such
13
explain variations among states in judicial decision-making in cases involving vertical treaty
provisions. Rather, the extent to which domestic courts apply vertical treaty provisions is best
explained by examining whether courts in a particular country are more inclined to adopt a
nationalist or transnationalist approach.
III.
Nationalist and Transnationalist Approaches
Part Three discusses nationalist and transnationalist techniques that courts apply,
focusing primarily on cases in which litigants ask courts to apply vertical treaty provisions. The
tension between nationalist and transnationalist approaches generally does not arise in cases
involving horizontal treaty provisions because courts rarely apply horizontal treaty provisions.
Similarly, the tension between nationalist and transnationalist approaches rarely arises in cases
involving transnational treaty provisions: courts in both monist and dualist states routinely apply
transnational treaty provisions without hesitation.
The fact that the tension between nationalist and transnationalist approaches pertains
primarily to vertical treaty provisions raises an additional point. Since vertical treaty provisions
regulate relations between states and private parties, litigated cases typically pit a private party
against a government actor. In some cases, the government invokes a vertical treaty provision to
support the exercise of governmental power to regulate private conduct.116
More commonly,
though, a private party invokes a vertical treaty provision as a constraint on government
action.117
Despite the spread of democratization since the end of the Cold War, many states still
lack a truly independent judiciary.118
In such states, transnationalism is not a viable option
because judges lack the institutional authority to issue and enforce judgments constraining
government conduct. In states that do have an independent judiciary, though, courts must still
decide whether to apply treaties — much as they would apply constitutional, statutory, or
common law — as a tool to constrain government action. Transnationalist judges apply treaties
in precisely this way, whereas nationalist judges employ various rationales for refraining to apply
treaties as a constraint on government action. This is the core feature of the distinction between
nationalist and transnationalist approaches.
study has been done, but the present author has done an empirical study of nationalist and transnationalist trends in
U.S. courts. See Sloss, ‗United States‘ (n 91). 116
For example, when the Security Council approved the transfer of Charles Taylor to the Netherlands to stand trial
before the Special Court for Sierra Leone, the government of the Netherlands relied on the Security Council
resolution, and therefore ultimately the U.N. Charter ‗to provide the proper legal basis in domestic law for the arrest
and detention of Charles Taylor‘. Nollkaemper (n 87) 329–30. 117
See, e.g., Paulus (n 79) 234–35 (discussing decisions of German courts applying Article 36 of the Vienna
Convention on Consular Relations) (discussing BGH, Beschluss v 7.11.2001 (Decision of 7 November 2001), 5 StR
116/01). 118
The Polity IV Project is the best source of data for estimating the number of countries with independent
judiciaries. The Polity IV Project rates 162 countries on a range of variables, one of which (xconst) ranks countries
in terms of constraints on the executive branch. See Polity IV Project, Political Regime Characteristics and
Transitions, 1800–2009: Dataset Users‘ Manual <http://www.systemicpeace.org/inscr/inscr.htm> accessed 26
March 2011. According to the most recent data, there are 81 countries that score 6 or 7 on the xconst variable,
meaning that there are significant constraints on the executive. This is a reasonably good proxy for determining
whether a country has an independent judiciary. Thus, approximately half the countries in the world have
independent judiciaries.
14
The following analysis of nationalist and transnationalist techniques is divided into four
sections: statutory interpretation, treaty interpretation, constitutional interpretation, and self-
execution. The first three sections address issues that are common to both monist and dualist
states. The final section addresses issues that are unique to monist states.119
A. Statutory Interpretation
Courts in both monist and dualist states frequently apply an interpretive presumption that
statutes should be construed in conformity with the nation‘s international legal obligations,
including obligations derived from both treaties and customary international law. This
interpretive presumption is sometimes called a ‗presumption of conformity‘ or a ‗presumption of
compatibility‘.120
In the United States, the presumption is referred to as the ‗Charming Betsy
canon‘.121
Labels aside, the presumption of conformity is probably the most widely used
transnationalist tool. Courts in Australia,122
Canada,123
Germany,124
India,125
Israel,126
the
Netherlands,127
Poland,128
South Africa,129
the United Kingdom,130
and the United States,131
among other countries, have applied the presumption in cases involving vertical treaty provisions
to help ensure that government conduct conforms to the nation‘s international treaty obligations.
One recurring issue concerns the threshold conditions necessary to trigger application of
the presumption. There is broad agreement that courts may apply the presumption in cases where
the statute is facially ambiguous. The Supreme Court of Canada has gone further, holding that ‗it
is reasonable to make reference to an international agreement at the very outset of the inquiry to
119
For a comparable analysis of issues unique to dualist states, see supra notes 37-55 and accompanying text. 120
See, e.g., van Ert (n 28) 188–97 (discussing application of the presumption of conformity by Canadian courts in
the context of, among others, R v Hape [2007] SCC 26); Kretzmer (n 29) 287–92 (discussing application of the
presumption of compatibility by Israeli courts in the context of, among others, Cr. A. 5/51, Steinberg v Attorney
General 5 P.D. 1061; HCJ 2599/00, Yated – Friendly Society of Downs Syndrome Children’s Parents v Ministry of
Education 56 P.D. (5) 834). 121
The canon takes its name from an 1804 decision by Chief Justice Marshall. See Murray v Schooner Charming
Betsy 6 US (2 Cranch) 64, 118 (1804). For an insightful analysis of the Supreme Court‘s application of the
Charming Betsy canon in the late twentieth century, see Melissa A. Waters, ‗International Law as an Interpretive
Tool in the Supreme Court, 1946–2000‘ in Intl Law in the U.S. Supreme Court (n 114). 122
See Rothwell (n 24) 152–56 (discussing, among others, Mabo v Queensland (No 2) (1992) 175 CLR 1). 123
See van Ert (n 28) 188–97 (discussing, among others, R v Hape [2007] SCC 26). 124
See Paulus (n 79) 209 (‗German courts are also bound to interpret domestic law, as far as possible, in a way that
avoids the breach of international legal obligations‘.) (citing BVerfGE 74, 358 at 370). 125
See Jayawickrama (n 16) 247–51 (discussing, among others, Jolly George Verghese [1980] 2 SCR 913). 126
See Kretzmer (n 29) 287–92 (discussing, among others, HCJ 2599/00, Yated – Friendly Society of Downs
Syndrom Children’s Parents v Ministry of Education 56 P.D. (5) 834). 127
See Nollkaemper (n 87) 348–51 (discussing, among others, Supreme Court, 27 May 2005, LJN AS7054). 128
See Garlicki and others (n 66) 404 (noting that ‗coapplication of an international norm and a domestic norm‘ is
the most common technique for the judicial application of treaties in Poland). 129
See Dugard (n 86) 457 (noting that the South African Constitution requires courts, when interpreting legislation,
to ‗prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative
interpretation that is inconsistent with international law‘) (citing S v Basson 2005 (1) SALR 171 (CC)). 130
See Aust (n 28) 482–83 (discussing, among others, Garland v British Rail Engineering [1983] 2 AC 751). 131
See Sloss, ‗United States‘ (n 91) 526–27 (discussing, among others, Murray v Schooner Charming Betsy 6 US (2
Cranch) 64, 118 (1804)).
15
determine if there is any ambiguity, even latent, in the domestic legislation‘.132
Justice Kirby
advocated a similar approach in Australia, arguing that courts should refer to international
treaties ‗not only when there exists statutory ambiguity, but also where the construction of a
statute would result in an interpretation contrary to international human rights standards‘.133
However, the majority of the Australian High Court has rejected this approach, refusing ‗to
endorse a wider role for treaties in statutory interpretation other than where the legislature has
clearly envisaged such a role or where there exists a clear ambiguity on the face of the statute‘.134
Judicial application of the presumption is clearly transnationalist, especially in cases
where the statute is not facially ambiguous. In contrast, judges with a more nationalist orientation
sometimes avoid application of the presumption by declaring that a statute is unambiguous in
cases where litigants argue that the statute could reasonably be interpreted in conformity with
international treaty obligations.135
It is likely that courts throughout the world decide numerous
statutory interpretation cases where the presumption is not applied, even though it is potentially
applicable, because litigants fail to raise a possible treaty argument, or courts decline to address
the argument explicitly. It is difficult to perform a systematic analysis of judicial application of
the presumption even in a single country because it is hard to identify cases in which courts do
not mention potentially applicable treaty arguments.
B. Treaty Interpretation
Domestic courts in both monist and dualist states are frequently asked to interpret
treaties. In dualist states, this situation commonly arises when the legislature enacts a statute that
is expressly intended to implement a treaty.136
In monist states, courts sometimes interpret
treaties when a litigant asks the court to apply a treaty directly, and sometimes when the treaty is
applied indirectly. Regardless of the context in which treaty interpretation issues arise, courts
have a choice whether to adopt a nationalist or transnationalist approach to treaty interpretation.
Courts applying a transnationalist approach interpret treaties in accordance with the
shared understanding of the parties. In accordance with this approach, transnationalist judges cite
the Vienna Convention on the Law of Treaties,137
decisions of foreign courts138
and international
132
National Corn Growers Association v Canada [1990] 2 SCR 1324, 1372–73. 133
See Rothwell (n 24) 153–54. 134
ibid 156. 135
See, e.g., Breard v Greene 523 US 371, 375–76, 118 S Ct 1352, 1354–55 (1998) (construing a federal statute to
be inconsistent with U.S. obligations under the Vienna Convention on Consular Relations). 136
See, e.g., Aust (n 28) 482–83 (United Kingdom) (discussing, among others, Sidhu v British Airways [1997] 1
AER 193); Jayawickrama (n 16) 264–65 (India) (discussing Dadu alias Tulsidas v State of Maharashtra Supreme
Court of India, Writ Petition (Criminal) 169 of 1999, 12 October 2000); and van Ert (n 28) 177 (Canada) (discussing
Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982). 137
See, e.g., Aust (n 28) 483 (United Kingdom) (discussing, among others, R v Lambert Justices, ex p Yusufu [1985]
Times Law Reports 114); Garlicki and others (n 66) 387–89 (Poland) (discussing, among others, Decision of March
9, 2004, I CK 410/03 (not published Lex 182080)); Nollkaemper (n 87) 360–62 (Netherlands) (discussing, among
others, Supreme Court, State Secretary for Finance v X 21 February 2003, 36 NYIL 2005, 475); Rothwell (n 24)
151–52 (Australia) (discussing, among others, Morrison v Peacock [2002] HCA 44); and van Ert (n 28) 175–82
(Canada) (discussing, among others, Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1
SCR 982).
16
tribunals,139
and views adopted by non-judicial international bodies140
to support their
interpretations of particular treaty provisions. In contrast, courts applying a nationalist approach
emphasize that treaty interpretation is primarily an executive function, not a judicial function.
Accordingly, courts applying a nationalist approach tend to defer to the executive branch on
treaty interpretation issues.141
Deference to the executive branch often yields judicial opinions
that give greater weight to unilateral national policy interests, and less weight to the shared,
multilateral understanding that guides transnationalist interpretations.
Available information, which is admittedly limited, indicates that the nationalist approach
to treaty interpretation is a minority approach. The United States may be the only state where
courts have adopted an explicit interpretive presumption favoring deference to the executive
branch on treaty interpretation issues.142
In Israel, the Supreme Court has never adopted an
express interpretive presumption of this type, but ‗in cases relating to the [Occupied Territories],
for a long time, the Supreme Court in fact adopted the interpretation of [Geneva Convention IV]
favored by the authorities‘.143
In contrast, Polish commentators assert: ‗For a court to treat
executive branch views [on treaty interpretation issues] as dispositive would be incompatible
with the principle of independence of the judicial branch, as understood under the Polish
Constitution‘.144
The Polish view appears to be the dominant one. In most countries with
independent judiciaries — including both monist and dualist states — domestic courts claim an
138
See, e.g., Dugard (n 86) 470 (South Africa) (discussing, among others, Potgieter v British Airways 2005 (3)
SALR 133 (C)); Kretzmer (n 29) 291–92 (Israel) (discussing, among others, F.H. 36/84, Teichner v Air France 41
P.D. (1) 589); Nollkaemper (n 87) 364–65 (Netherlands) (discussing, among others, Administrative Law Division of
the Council of State, M.E.D. v State Secretary for Justice 6 November 1995, 28 NYIL 1997, 353); and van Ert (n 28)
185–86 (Canada) (discussing, among others, Connaught Laboratories Ltd v British Airways (2002) 61 OR (3d) 2004
(Ont. SCJ)). 139
See, e.g., Dugard (n 86) 466–70 (South Africa) (discussing, among others, Ferreria v Levin NO 1996 (1) SALR
984 (CC)); Garlicki and others (n 66) 389–98 (Poland) (discussing, among others, Judgment of January 29, 2003,
V.S.A. 1494/02 (ONSA 2004 nr 2, item 57)); Nollkaemper (n 87) 363–64 (Netherlands) (discussing, among others,
H v Public Prosecutor Court of Appeal of The Hague, ILDC 636 (NL 2007)); Paulus (n 79) 223–35 (Germany)
(discussing, among others, BVerfGE 111, 307 (2004)); and van Ert (n 28) 183–84 (Canada) (discussing, among
others, Mugesera v Canada (Minister of Citizenship and Immigration) [2005] 2 SCR 91). 140
See, e.g., Dugard (n 86) 466–70 (South Africa) (discussing, among others, Government of the Republic of South
Africa v Grootboom 2001 (I) SALR 46 (CC)); Minister of Health v Treatment Action Campaign (No 2) 2002 (5)
SALR 721 (CC)); Jayawickrama (n 16) 257 (India) (discussing Visaka v State of Rajasthan [1997] 3 LRC 361);
Kretzmer (n 29) 298–301 (Israel) (discussing, among others, HCJ 7029/95 New General Labor Federation v
National Labor Court 51 P.D. (2) 63, 157); and van Ert (n 28) 184–85 (Canada) (discussing, among others,
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) [2004] 1 SCR 76). 141
See, e.g., Sloss, ‗United States‘ (n 91) 524–25 (discussing, among others, El Al Israel Airlines, Ltd v Tsui Yuan
Tseng 525 US 155, 168 (1999)); Kretzmer (n 29) 292–95 (Israel) (discussing, among others, HCJ 785/87, Afu v IDF
Commander 42(2) P.D. 4 (English tr 29 Intl Legal Materials 139 (1990)). 142
See, e.g., Medellin v Texas 552 US 491, 513, 128 S Ct 1346, 1361 (2008) (‗It is, moreover, well settled that the
United States‘ interpretation of a treaty ―is entitled to great weight‖‘.). In other states, courts give conclusive weight
to executive views on specific treaty-related issues that are constitutionally committed to executive decision-making.
See, e.g., Aust (n 28) 484 (United Kingdom); Dugard (n 86) 471–72 (South Africa); and van Ert (n 28) 186–88
(Canada). However, to the best of my knowledge, the United States is the only country where the nation‘s highest
court has expressly adopted an interpretive canon favoring deference to the executive branch across the full
spectrum of treaty interpretation questions. 143
Kretzmer (n 29) 292 (discussing, among others, HCJ 785/87 Afu v IDF Commander 42(2) P.D. 4). 144
Garlicki and others (n 66) 399 (discussing, among others, K Galstyan V SA 726/99).
17
independent responsibility to construe treaties in accordance with the shared expectations of the
parties, without giving undue weight to the unilateral views of their own governments.145
A distinct interpretive issue concerns treaty-based protection for the rights of private
parties. Transnationalist judges recognize that many treaties are designed to protect the rights of
private parties. Accordingly, they interpret treaties in a manner that accords significant protection
to treaty-based private rights.146
In contrast, nationalist judges sometimes apply a presumption
that treaties ordinarily regulate horizontal relations between states, not vertical relations between
states and private parties.147
Application of this presumption can lead nationalist courts to
construe vertical treaty provisions as if they were horizontal provisions, thereby denying
protection for treaty-based private rights. This strategy provides nationalist judges a convenient
rationale for declining to apply treaty-based (vertical) constraints on governmental conduct.148
The United States is the only state whose courts have adopted an explicit interpretive
presumption that treaties do not create rights for private parties. Courts in other states approach
the matter as a straightforward interpretive question, without adopting a presumption for or
against private rights.149
If the treaty text, on its face, indicates that the parties intended to confer
rights on private parties, domestic courts will typically enforce those rights, subject to constraints
on judicial enforcement of unincorporated treaties in dualist states.150
C. Constitutional Interpretation
145
See, e.g., Aust (n 28) 482–83 (United Kingdom); Dugard (n 86) 471–72 (South Africa) (discussing, among
others, Kolbarschenko v King NO 2001 (4) SALR 336 (C)); Jayawickrama (n 16) 267–70 (India); Nollkaemper (n
87) 362–63 (Netherlands) (discussing, among others, Central Appeals Tribunal 21 July 2006, LJN No. AY 5560);
Paulus (n 79) 221–23 (Germany) (discussing, among others, Görgülü BVerfGE 111, 307, Engl Tr BVerfG, 2 BvR
1481/04 of 14 Oct 2004); and van Ert (n 28) 186–88 (Canada) (discussing Pushpanathan v Canada [1998] 1 SCR
982; Château-Gai Winers Ltd. v Attorney General of Canada [1970] Ex CR 366). 146
See, e.g., Aust (n 28) 484–87 (United Kingdom); Dugard (n 86) 472–74 (South Africa); Garlicki and others (n
66) 400–07 (Poland) (discussing, among others, Judgment of November 21, 2003 (I CK 323.02), OSNC 2004 nr 6,
item 103); Jayawickrama (n 16) 266–72 (India) (discussing Basu v State of West Bengal [1997] 2 LRC 1; Visaka v
State of Rajasthan [1997] 3 LRC 361); Nollkaemper (n 87) 345–48 (Netherlands) (discussing, among others,
Central Appeals Court for the Public Service and for Social Security Matters X Y & Z v B.O.Z. Regional
Compulsory Insurance Fund 29 May 1996, 30 NYIL 1998, 241); Paulus (n 79) 211 (Germany) (‗[W]hen individual
citizens claimed rights against the state on the basis of international law, it was quite natural that the state that had
given its word to other states could be regarded also bound toward its own citizens‘.); Rothwell (n 24) 136
(Australia) (‗[O]ne clear trend is that the courts have become more open to hearing matters based on the existence
not only of a treaty right recognized under Australian law but also of a right that exists entirely under international
law by way of a treaty to which Australia is a party‘.); and van Ert (n 28) 202–07 (Canada). 147
See Sloss, ‗United States‘ (n 91) 525–26 (discussing, among others, Gandara v Bennett 528 F.3d 823, 828 (11th
Cir. 2008)). 148
See ibid 539–40. 149
See, e.g., Aust (n 28) at 484 (United Kingdom) (‗There is no presumption that a treaty does not create a right for
a private party‘.); Dugard (n 86) 472 (South Africa) (stating that an incorporated treaty ‗creates rights and duties for
the individual in the same way that an ordinary statute creates rights and duties‘); Garlicki and others (n 66) 400
(Poland) (‗It is generally recognized that self-executing [treaty] provisions create rights (and obligations) for private
parties‘.); and Nollkaemper (n 87) 347 (Netherlands) (‗Dutch law recognizes the fact that states may agree by treaty
to grant certain rights to individuals, which they are then entitled to enforce before national courts‘.). 150
See supra notes 28-30 and accompanying text (discussing constraints on judicial application of unincorporated
treaties in dualist states.
18
Courts in both monist and dualist states apply treaties to help elucidate the meaning of
constitutional provisions. South Africa and India are two leading examples of states where courts
routinely invoke treaties and other provisions of international law in the context of constitutional
interpretation.151
The South African Constitution states explicitly: ‗When interpreting the Bill of
Rights, a court, tribunal or forum ... must consider international law; and may consider foreign
law‘.152
In light of this constitutional mandate, the South African Constitutional Court has
adopted the view ‗that the spirit, purport and objects of the bill of rights ... are inextricably linked
to international law and the values and approaches of the international community‘.153
Similarly,
the Indian Constitution stipulates: ‗The State shall endeavour to ... foster respect for international
law and treaty obligations in the dealings of organized peoples with one another‘.154
Accordingly, Indian jurisprudence reflects a view ‗that any international convention not
inconsistent with the fundamental rights provisions in the Constitution and in harmony with its
spirit must be read into those provisions to enlarge the meaning and content thereof‘.155
Courts in Canada, Germany, Israel and Poland also apply treaties to help interpret
domestic constitutional provisions, but they do so less regularly than the Indian Supreme Court
or the South African Constitutional Court.156
The judicial practice of using international law in
constitutional interpretation has provoked sharp controversy in both Australia and the United
States. In Australia, Justice Kirby was a strong advocate for judicial application of international
law in constitutional interpretation, but he never persuaded a majority of the High Court to
follow his recommended approach.157
The United States Supreme Court has occasionally cited
treaties to support its interpretation of a contested constitutional provision; in all such cases the
majority‘s reliance on international law provoked a strong critical response from the dissenting
Justices.158
Recent judicial practice in the United Kingdom merits separate discussion. Since Britain
does not have a written, constitutional Bill of Rights, British courts rely on other sources of law
to protect the fundamental rights that, in most other countries, are protected by a written
Constitution. The Human Rights Act, enacted in 1998, ‗effectively incorporated the [European
Convention of Human Rights] into English law‘.159
Since passage of the Act, British courts
151
See Dugard (n 86) 457–71 (South Africa) (discussing, among others, Prince v President Cape Law Society
2002(2) SALR 794 (CC)); Jayawickrama (n 16) 245–47, 266–72 (India) (discussing, among others, Visaka v State of
Rajasthan [1997] 3 LRC 361). 152
S. Afr. Const. s 39(1). 153
Dugard (n 86) 462 (quoting Neville Botha, ‗The Role of International Law in the Development of South African
Common Law‘ (2001) S. Af. Yrbk Intl L. 253, 259). 154
India Const. s 51. 155
Jayawickrama (n 16) 246 (discussing, among others Visaka v State of Rajasthan [1997] 3 LRC 361). 156
See Garlicki and others (n 66) 404–05 (Poland) (discussing, among others, Judgment of the Constitutional Court
of March 20, 2006 (K 17/05); Judgment of the Constitutional Court of October 11, 2006 (P 3/06)); Kretzmer (n 29)
298–301 (Israel) (discussing, among others, HCJ 112/77 Foguel v Broadcasting Authority 31 P.D. (3) 657); Paulus
(n 79) 230–33 (Germany) (discussing, among others, BVerfGE 111, 307 (2004)); and van Ert (n 28) 197–201
(Canada) (discussing, among others, R v Hape [2007] SCC 26). 157
See Rothwell (n 24) 156–58 (discussing, among others, Al-Kateb v Godwin [2004] HCA 37). 158
See, e.g., Graham v Florida 130 S Ct 2011 (2010); Roper v Simmons 543 US 551, 125 S Ct 1183 (2005); and
Lawrence v Texas 539 US 558, 123 S Ct 2472 (2003). For an insightful analysis of the controversy, see Mark
Tushnet, ‗International Law and Constitutional Interpretation in the Twenty-First Century: Change and Continuity‘
in Intl Law in the U.S. Supreme Court (n 114). 159
Aust (n 28) 487.
19
routinely apply the European Convention to protect individual rights that, in many other
countries, would be regarded as constitutional rights.160
D. Self-Execution in Monist States
Judicial doctrine in monist states distinguishes between treaties that are directly
applicable as law and treaties that are not directly applicable. Many states use the terms ‗self-
executing‘ and ‗non-self-executing‘ to distinguish between these two classes of treaty
provisions.161
When a court holds that a treaty is self-executing, it typically acts in a
transnationalist mode to facilitate the domestic application of treaty-based international norms.
When a court holds that a treaty is not self-executing, it generally acts in a nationalist mode to
shield the domestic legal system from the influence of treaty-based legal norms.162
Judicial
doctrine invariably grants judges some discretion to determine which treaties are self-executing.
Transnationalist judges exercise their discretion in a manner that pushes more treaties into the
self-executing category. Nationalist judges exercise their discretion in a manner that pushes more
treaties into the non-self-executing category.
South Africa‘s Constitution includes an explicit textual distinction between self-
executing and non-self-executing treaty provisions.163
Although the Constitution refers explicitly
to ‗self-executing‘ treaties, it does not define the term ‗self-executing‘, nor does it identify
criteria for distinguishing between self-executing and non-self-executing treaties. The South
African courts have not yet issued a definitive ruling to clarify the meaning of the self-execution
clause in the South African Constitution.164
Accordingly, there is an ongoing scholarly debate as
to which treaties, if any, are self-executing in South Africa.165
Ultimately, the resolution of that
question may have little practical significance because the South African Constitutional Court is
one of the most transnationalist courts in the world: it regularly applies treaties and customary
international law to help construe both statutory and constitutional provisions.166
Domestic courts in Germany, Poland, and the Netherlands are also fairly transnationalist,
insofar as they take a fairly broad view of which treaties are self-executing. In all three countries,
courts generally hold that treaty provisions designed to benefit private parties are invocable by
private parties and directly applicable by the courts, subject to one caveat.167
To be directly
160
See ibid 487–91 (discussing, among others, A(FC) and others v Secretary of State [2004] UKHL 56). 161
See, e.g., Dugard (n 86) 453–55 (South Africa); Garlicki and others (n 66) 400–03 (Poland); and Wildhaber and
others (n 69) 659 (Switzerland). 162
See Sloss, ‗United States‘ (n 91) 527–29 (discussing, among others, Intl Café SAL v Hard Rock Café Intl (USA),
Inc 252 F.3d 1274 (11th Cir. 2001)). 163
See S. Afr. Const. s 231(4), reprinted in Botha (n 68) 609–10 (‗Any international agreement becomes law in the
Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has
been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of
Parliament‘.). 164
See Dugard (n 86) 454. 165
See ibid 453–55. 166
See ibid 457–73 (discussing, among others, S v Makwanyane 1995 (3) SA 391 (CC); S v Williams 1995 (3)
SALR 632 (CC)). 167
See Garlicki and others (n 66) 400–07 (Poland) (discussing, among others, The Interagra Judgment Judgment of
June 14, 1988 (II CR 367/87), OSP 1990 nr 9, item 705); Nollkaemper (n 87) 341–48 (the Netherlands) (discussing,
20
applicable, ‗a treaty provision has to be sufficiently clear to function as ‗objective law‘ in the
domestic legal order‘.168
Courts in all three countries have stated or assumed that most
substantive provisions of the European Convention on Human Rights and other human rights
treaties are self-executing.169
The self-execution jurisprudence in Germany, Poland and the Netherlands is
characteristic of most European Union countries because judicial decision-making in those
countries is heavily influenced by the European Court of Justice (ECJ). ECJ case law
―establishes that European law requires the direct effect of community law in the domestic legal
order. Moreover, the ECJ demands supremacy of European over domestic law.‖170
Thus, once a
legal instrument ―has been adopted by a competent EU body, it . . . becomes automatically
incorporated into the system of law binding on the national level [in Poland] and must be
enforced by all national authorities, in particular by the national courts.‖171
For states who are
members of the European Union, this is a ―consequence of EU membership,‖ and member states
have ―no alternative but to follow the established rules.‖172
In contrast to European jurisprudence, self-execution doctrine in the United States is
analytically incoherent.173
Courts and commentators agree that non-self-executing treaties are not
directly applicable by domestic courts, but they do not agree why this is so. Some sources
suggest that non-self-executing treaties are not incorporated into domestic law. A distinct view
holds that non-self-executing treaties are part of domestic law, but they are a special type of law
that courts are precluded from applying directly.174
Under the latter approach, there is further
disagreement as to why courts are precluded from applying non-self-executing treaties.175
In
among others, Central Appeals Tribunal, Management Board of Employee Insurance Benefits Agency v X 14 March
2003, 36 NYIL 2006, 466); and Paulus (n 79) 209–12 (Germany). 168
Nollkaemper (n 87) 333 (the Netherlands). See also Garlicki and others (n 66) 400 (courts in Poland recognize a
treaty as self-executing if it has been drafted ‗in a manner allowing its use as an exclusive legal basis for resolving
an individual case or controversy‘) (Resolution of the Supreme Court of October 5, 1974, III CZP 71/73, OSN CP
1975, no 5, item 72); Wildhaber and others (n 69) 659 (under Swiss doctrine, ‗a treaty is self-executing if it is
sufficiently precise and clear to constitute the basis of decision in a concrete case‘). 169
See Garlicki and others (n 66) 405 (Poland) (discussing Judgment of November 28, 2001 (V KKN 565/99, Lex nr
51620)); Nollkaemper (n 87) 342 (the Netherlands); and Paulus (n 79) 232 (Germany) (discussing BVerfGE 111,
307 (2004); English tr BVerfG, 2 BvR 1481/04 of 14 October 2004, available at
http://www.bverfg.de/entsheidungen/rs20041014_2bvri48104en.html). 170
Paulus (n 79) 210 (citing Internationale Handelsgesellschaft, Case 11/70, [1970] ECR 1125). 171
Garlicki and others (n 66) 385. 172
ibid 173
For recent commentary, see Curtis A. Bradley, ‗Self-Execution and Treaty Duality‘ (2009) Sup. Ct. Rev. 131;
Carlos Manuel Vazquez, ‗Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of
Treaties‘ (2008) 122 Harv. L. Rev. 599; and Ernest A. Young, ‗Treaties as ―Part of Our Law‖‘ (2009) 88 Tex. L.
Rev. 91. 174
See David Sloss, ‗Non-Self-Executing Treaties: Exposing a Constitutional Fallacy‘ (2002) 36 U.C. Davis L. Rev.
1, 10–18 (summarizing different theories of non-self-execution). 175
See ibid 12–18. In some cases, courts hold that a treaty provision is not self-executing because it is too vague or
ambiguous for judicial enforcement. See Carlos Manuel Vazquez, ‗The Four Doctrines of Self-Executing Treaties‘
(1995) 89 Am. J. Int‘l L. 695, 713-15. This version of the doctrine is similar to the non-self-execution doctrine
applied in many European countries. See supra notes 167-68 and accompanying text. In other cases, courts hold that
a treaty provision is not self-executing — even though it is sufficiently unambiguous to permit judicial enforcement
— because the political branches have manifested a desire to preclude or limit judicial enforcement. See Sloss (n
172) 35-44. This version of the doctrine has no apparent analogue in other countries.
21
practice, courts often hold that treaties are non-self-executing when an individual invokes a
vertical treaty provision as a constraint on government action, but they almost never hold that
transnational treaty provisions are non-self-executing.176
Thus, the net effect of judicial doctrine
is that U.S. courts tend to adopt a transnationalist approach in cases involving transnational treaty
provisions, but they tend to adopt a nationalist approach in cases involving vertical treaty
provisions.177
In contrast, courts in Germany, the Netherlands, Poland and South Africa adopt a
fairly consistent transnationalist approach for both vertical and transnational treaty provisions.
IV.
Domestic Courts and Treaty Compliance
The final part of this chapter addresses the respective roles of the judicial, executive and
legislative branches in promoting compliance with treaty obligations.178
My central claim is that
these roles vary greatly depending on whether the treaty provision at issue is horizontal, vertical
or transnational. In brief, executive officials have primary responsibility for ensuring compliance
with horizontal treaty obligations; the judiciary‘s role is marginal. With respect to transnational
treaty provisions, though, the positions are reversed. The judiciary plays a central role in
promoting compliance with transnational treaty provisions and the executive is marginalized.
The picture for vertical treaty provisions is more complex.
A. Horizontal Treaty Provisions
As discussed above, domestic courts rarely apply horizontal treaty provisions.179
Consequently, domestic courts bear little responsibility for promoting compliance with
horizontal treaty provisions. This proposition is generally true for both monist and dualist states,
regardless of whether courts adopt a nationalist or transnationalist approach.
With respect to horizontal treaties, the relationship between the legislative and executive
branches depends on the specific treaty provision at issue and the constitutional structure of a
given state. For example, the North Atlantic Treaty obligates parties to assist other member states
if there is ‗an armed attack against one or more of them in Europe or North America‘.180
The
duty to provide mutual assistance in the event of an armed attack is a paradigmatic horizontal
treaty obligation. If a NATO state was the target of an armed attack, the executive branches in
other NATO states would have primary responsibility for providing assistance under the treaty.
In some states, depending on constitutional separation of powers considerations, the executive
might have to obtain legislative approval before committing troops and weapons to the defense
of an ally. Regardless, there is no state in which the judiciary would be responsible for
implementing the nation‘s treaty obligation to help defend against an armed attack.
176
See Sloss, ‗United States‘ (n 91) 534–36. 177
See ibid 529–39. 178
Given space constraints, the present analysis does not address the role of sub-national governments. However, it
is noteworthy that sub-national governments in some states exert significant influence over matters related to treaty
compliance. See, e.g., Beemelmans & Treviranus (n 62) 328–29 (Germany); Wildhaber and others (n 69) 635–37
(Switzerland). 179
See supra notes 98-101 and accompanying text. 180
North Atlantic Treaty art 5 (adopted 4 April 1949, entered into force 24 August 1949) 34 UNTS 243.
22
B. Transnational Treaty Provisions
Conventional wisdom holds that the executive branch has primary responsibility in most
countries for implementing international treaty obligations. This is certainly not true for
transnational treaty provisions. Consider, for example, the 1929 Warsaw Convention, which
regulates international air carriage.181
In the United States, Congress never enacted legislation to
implement the Convention, but courts routinely apply it as a self-executing treaty.182
In many
dualist states,183
and even in some monist states,184
the legislature has enacted legislation to
promote effective implementation of the Convention. In all states — whether the treaty is
considered self-executing or is implemented by legislation — the judiciary bears primary
responsibility for resolving disputes between private parties that are governed by the
Convention.185
In the United States, the executive branch occasionally submits amicus briefs to
present its views about the proper interpretation of contested treaty provisions, but that is the
extent of executive branch participation in treaty implementation.
Domestic courts play a crucial role in promoting compliance with transnational treaty
provisions. A simple example helps illustrate this point. The New York Convention obligates
states to recognize and enforce foreign arbitral awards.186
Assume that a French company and a
Japanese company submit a commercial dispute to an arbitral panel in accordance with
UNCITRAL arbitration rules.187
The panel orders the Japanese company to pay damages to the
French company, but the Japanese company refuses to pay. That refusal, by itself, does not
constitute a violation of Japanese treaty obligations because the company‘s refusal to pay is not
attributable to the Japanese government.188
Now assume that the French company files suit in a
Japanese court to enforce the arbitral award. If the Japanese court rules against the French
company, and that ruling cannot be justified under the New York Convention,189
the judicial
decision would constitute a violation of Japanese treaty obligations because that judicial decision
is attributable to the Japanese government under principles of state responsibility.190
Conversely,
181
Convention for the Unification of Certain Rules Relating to International Carriage by Air (signed 12 October
1929, entered into force 13 February 1933) 137 LNTS 11 [hereinafter Warsaw Convention]. The Warsaw
Convention is the predecessor of the 1999 Montreal Convention (n 103). 182
See, e.g., Olympic Airways v Husain 540 US 644, 124 S Ct 1221 (2004); El Al Airlines v Tsui Yuan Tseng 525
US 155, 119 S Ct 662 (1999). 183
See, e.g., Kretzmer (n 29) 284 (Israel); Rothwell (n 24) 138 (Australia); and van Ert (n 28) 186 (Canada). 184
See Dugard (n 86) 470 (South Africa); Nollkaemper (n 87) 355 (the Netherlands). 185
See, e.g., Dugard (n 86) 470 (South Africa); Kretzmer (n 29) 290–91 (Israel); Nollkaemper (n 87) 355 (the
Netherlands); Rothwell (n 24) 138 (Australia); and van Ert (n 28) 186 (Canada). 186
See New York Convention (n 102) art. III (‗Each Contracting State shall recognize arbitral awards as binding and
enforce them ... under the conditions laid down in the following articles‘.). 187
UNCITRAL is the UN Commission on International Trade Law. For information, see UNCITRAL
<http://www.uncitral.org/uncitral/en/about_us.html> accessed 26 March 2011. 188
See James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text
and Commentaries (CUP, Cambridge 2002) 91–93. 189
Article V of the New York Convention identifies several circumstances in which ‗[r]ecognition and enforcement
of the [foreign arbitral] award may be refused‘. See New York Convention (n 102) art. V. Under the treaty, states
are obligated to enforce foreign arbitral awards unless there is a valid reasons for non-enforcement as specified in
Article V. 190
See Articles on Responsibility of States for Internationally Wrongful Acts art. 4 (‗The conduct of any State organ
shall be considered an act of that State under international law, whether the organ exercises legislative, executive,
judicial or any other functions ...‘) (reprinted in Crawford (n 186) 61).
23
if the Japanese court orders the Japanese company to pay — and especially if the court attaches
company assets to secure payment — the court is effectively acting as an agent of the
international legal system to ensure Japanese compliance with national treaty obligations. Either
way, the domestic court is the primary decision-maker whose decision determines whether the
nation complies with its treaty obligations. This is characteristic of transnational treaty
provisions: in most cases involving transnational provisions, domestic courts serve as the
primary interface between the domestic and international legal systems, and their decisions
effectively determine whether the nation complies with its treaty obligations.
The preceding observations about domestic judicial application of transnational treaty
provisions apply equally to both monist and dualist states, with one caveat. In dualist states, the
legislature typically incorporates a treaty before courts will apply it to resolve private disputes.
Once the treaty is incorporated, though, judicial application is quite similar in both monist and
dualist states. Moreover, the distinction between nationalist and transnationalist approaches has
scant effect on judicial application of transnational treaty provisions. The global record of
compliance with transnational treaty provisions is quite good because national courts in most
states apply transnational treaty provisions routinely — either directly or indirectly — to help
resolve private disputes arising from cross-border activities.
C. Vertical Treaty Provisions
The relationship among the legislative, executive and judicial branches in implementing
vertical treaty provisions is a complex subject that defies simple generalizations. Patterns vary by
nation and by individual treaty.
States sometimes achieve compliance with vertical treaty obligations even if no
government official or agency makes a conscious decision to implement that obligation. For
example, when the United States ratified the International Covenant on Civil and Political Rights
(ICCPR), the executive branch assured the Senate that no implementing legislation was
necessary because the United States could fulfill its treaty obligations by applying pre-existing
laws.191
Thus, when a court issues an injunction to enjoin enforcement of a state law that violates
federal laws prohibiting race-based discrimination, one could say that the court is promoting
compliance with U.S. treaty obligations under articles 2 and 26 of the ICCPR,192
even if the court
never considers a treaty-based argument. Similarly, commentators have noted that Canadian
courts implement Canada‘s obligations under the ICCPR, at least partially, by applying the
Canadian Charter of Rights and Freedoms and other provisions of domestic law.193
Leaving aside cases where states achieve compliance almost unwittingly, we turn next to
situations where some government actor makes a conscious decision to apply or interpret a
191
See David Sloss, ‗The Domestication of International Human Rights: Non-Self-Executing Declarations and
Human Rights Treaties‘ (1999) 24 Yale J. Intl L. 129, 183–88. 192
See ICCPR (n 3) art. 2(1) (guaranteeing protection of rights ‗without distinction of any kind, such as race, colour
... or other status‘); ibid art. 26 (guaranteeing ‗all persons equal and effective protection against discrimination on
any ground such as race, colour ... or other status‘). 193
See Gib van Ert, Using International Law in Canadian Courts (2nd
edn Kluwer Law International, The Hague
2008) 332–51.
24
particular treaty in a particular way. Here, it is helpful to discuss the 1951 Refugee Convention194
and the 1967 Refugee Protocol195
to illustrate the interplay among the legislative, executive and
judicial branches in the domestic application of vertical treaty provisions.
In dualist states, the legislature must first decide whether to enact legislation to
incorporate a treaty into domestic law. Professor Aust says: ‗It is invariable British practice
never to ratify a treaty until any [necessary implementing] legislation has first been made‘.196
Like Britain, other dualist states generally refrain from ratifying treaties with vertical obligations
unless or until they have enacted the implementing legislation necessary to ensure compliance
with those obligations.197
Accordingly, Australia, Canada, and the United Kingdom have all
adopted legislation to implement the Refugee Convention and Protocol.198
Even in monist states,
legislatures often enact implementing legislation to promote effective domestic implementation
of vertical treaty provisions. Although South Africa‘s Constitution provides expressly for self-
executing treaties,199
the South African legislature enacted legislation in 1998 to implement the
nation‘s treaty obligations under the Refugee Convention and Protocol.200
Similarly, in the
United States, even though the Constitution specifies that ratified treaties are the ‗supreme Law
of the Land‘,201
Congress enacted legislation in 1980 to implement U.S. obligations under the
Refugee Protocol.202
Thus, in both monist and dualist states, legislative decisions about whether
and how to implement vertical treaty provisions can have a significant impact on the nation‘s
compliance with its treaty obligations.
Once a vertical treaty provision enters into force domestically, the executive branch
assumes primary responsibility for treaty implementation. In most states, if an individual seeks
admission to the country as a refugee, an executive officer will make the initial determination
whether the individual qualifies for refugee status. That determination might promote or hinder
treaty compliance, depending on three factors: 1) whether the treaty has been fully or partially
incorporated into domestic law (either by legislation or self-execution); 2) insofar as the treaty is
unincorporated or partially incorporated, whether the executive decision-maker construes
relevant domestic laws in conformity with the nation‘s treaty obligations; and 3) insofar as the
decision-maker consults or applies the treaty, whether that decision-maker interprets the treaty in
accordance with internationally agreed principles of treaty interpretation.
194
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189
UNTS 137. 195
Refugee Protocol (n 6). 196
Aust (n 28) 486. 197
See, e.g., Hollis ‗Comparative Approach‘ (n 20) 32–34 (concluding that ‗the case studies presented support a
practice by which states join treaties only after they have established the domestic legal means to comply with the
treaty‘s obligations‘); van Ert (n 28) 204 (‗The usual Canadian practice is not to allow treaties requiring domestic
implementation to enter into force for Canada until the federal government has ensured the treaty‘s
implementation‘.). 198
See Aust (n 28) 490–91 (United Kingdom); Rothwell (n 24) 138–40 (Australia); and van Ert (n 28) 175 (Canada). 199
See S. Afr. Const. (n 163). 200
See Dugard (n 86) 473–74. 201
U.S. Const. art. VI cl 2. 202
The Refugee Act of 1980, PL No. 96-212, 94 Stat. 102 (17 March 1980). The United States is not party to the
1951 Refugee Convention, but U.S. ratification of the 1967 Protocol effectively means that the United States is
bound by key provisions of the Convention.
25
If a treaty has been fully incorporated into domestic law — either by self-execution or by
legislative incorporation — the decision-maker will presumably apply the treaty as a rule of law
to reach his/her decision. In the Netherlands, for example, the 2000 Aliens Act authorizes
executive officers to grant residence permits for ‗Convention refugees‘, without defining the
term. Hence, the statute effectively directs administrative (and judicial) decision makers to apply
the treaty definition of refugees.203
The statute therefore promotes treaty compliance by directing
decision-makers to apply the treaty definition as a rule of domestic law. In contrast, when a
treaty remains wholly or partially unincorporated, decision-makers must apply domestic rules in
place of or in tandem with the international rule; this raises a greater risk of noncompliance. In
Australia, for example, the 1951 Convention has been only partially incorporated into domestic
law.204
Consequently, Australian decision-makers have been hesitant to rely too heavily on the
Convention in construing domestic statutes,205
producing a less-than-perfect record of treaty
compliance.
If a vertical treaty provision remains wholly or partially unincorporated, executive
decision-makers might still construe relevant domestic statutes in harmony with the nation‘s
international treaty obligations. For example, Canada‘s Immigration and Refugee Protection Act
directs executive officers to construe the Act ‗in a manner that ... complies with international
human rights instruments to which Canada is a signatory‘.206
The statutory reference to ―human
rights instruments‖ presumably includes the Refugee Convention and Protocol.207
Similarly, in
other states, executive officers may have a constitutional or statutory duty to perform their
governmental functions in a manner that is consistent with the nation‘s treaty obligations —
including, perhaps, obligations contained in unincorporated or partially incorporated treaties.208
Alternatively, executive officials might simply decide as a policy matter to exercise their
statutory responsibilities in a way that promotes compliance with treaty obligations. In any case,
if executive officials have a conscious goal of exercising their powers and duties consistently
with international treaty obligations, treaty compliance is enhanced. Conversely, if executive
officials are heedless of treaty obligations, their actions are less likely to promote treaty
compliance.
Executive officials are often required to interpret treaties. An official charged with
deciding whether to grant an applicant refugee status would need to interpret the treaty if the
treaty itself provides the governing rule of domestic law (via self-execution or full
incorporation), or if some law or policy directs the official to take account of the treaty when
construing the relevant domestic statute. In construing the treaty, the official might be guided to
203
See Nollkaemper (n 87) 336–37. 204
See Rothwell (n 24) 138–40. 205
See ibid 153–56. 206
van Ert (n 191) 155. 207
Canada is party to both the 1951 Refugee Convention and the 1967 Refugee Protocol. See United Nations Treaty
Collection <http://treaties.un.org/Home.aspx?lang=en> accessed 27 march 2011. 208
In the United States, the President and subordinate executive officers have a constitutional duty to ‗take Care that
the Laws be faithfully executed‘. U.S. Const. art. II s 3. Most commentators agree that the Take Care Clause creates
a legal duty for executive officers to implement treaties. See Edward T. Swaine, ‗Taking Care of Treaties‘ (2008)
108 Colum. L. Rev. 331. The U.S. Supreme Court decision in Medellin v. Texas, 552 US 491(2008), is not to the
contrary. Medellin stands for the proposition that there are constitutional limits on the President‘s power to
implement treaties, but Medellin is consistent with the view that the President has a duty to act within the scope of
his constitutional powers to execute treaties.
26
some extent by unilateral national policy interests. However, he or she might also be guided by
internationally agreed principles of treaty interpretation.209
If executive decision-makers give
great weight to internationally agreed principles, their decisions are more likely to promote treaty
compliance. Conversely, if decision-makers give more weight to unilateral policy interests, there
is a greater risk that their decisions will obstruct treaty compliance.
If the legislative and executive branches both viewed treaty compliance as a paramount
objective, the courts would rarely be asked to decide cases involving alleged treaty violations.
However, legislatures sometimes fail to implement treaties that require legislative
implementation, and executive officers sometimes fail to honor such treaties. When that happens,
courts may be asked to decide whether governmental conduct is consistent with the nation‘s
treaty obligations. Ultimately, the impact of judicial decision-making depends heavily on
whether domestic courts pursue a nationalist or transnationalist course. In states where courts
tend to adopt a transnationalist approach, domestic courts can play a key role in promoting treaty
compliance. India, the Netherlands, and Poland are leading examples of states where domestic
courts actively promote compliance with vertical treaty obligations.210
However, in states where
courts tend to apply a nationalist approach, domestic courts effectively cede authority to the
legislative and executive branches to make key decisions affecting compliance with vertical
treaty provisions. Israel and the United States exemplify this nationalist approach, although
judicial decision-making in Israel is moving in a more transnationalist direction.211
Finally, it is important to note that legislative action or inaction can nudge courts in a
more nationalist or transnationalist direction. In the United Kingdom, for example, Parliament‘s
decision to enact the Human Rights Act 1998 has undoubtedly moved judicial decision-making
in British courts in a more transnationalist direction.212
In the United States, however, the
Senate‘s consistent practice of attaching non-self-executing declarations to human rights treaties
has clearly pushed judicial decision-making in a more nationalist direction.213
These examples
illustrate the complexity of the relationship among legislative, executive and judicial branches in
shaping governmental decisions that affect compliance with vertical treaty obligations.
CONCLUSION
International law and international relations scholars have written extensively about
theories of national compliance with international legal obligations, including treaty
obligations.214
However, the scholarly literature has paid scant attention to domestic courts as
key institutional actors whose decisions can promote or impede treaty compliance.215
The
preceding discussion suggests that more detailed study of domestic courts is warranted. Granted,
209
Add citation to Richard Gardiner‘s chapter. 210
See Garlicki and others (n 66) (Poland); Jayawickrama (n 16) (India); and Nollkaemper (n 87) (the Netherlands). 211
See Kretzmer (n 29) (Israel); Sloss ‗United States‘ (n 91). 212
See Aust (n 28) 483–84, 487–90. 213
See, e.g., Martin S. Flaherty, ‗Global Power in an Age of Rights: Historical Commentary, 1946–2000‘ in Intl
Law in the U.S. Supreme Court (n 114). 214
See, e.g., Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (OUP, Oxford 2005); Andrew T.
Guzmán, How International Law Works (OUP, Oxford 2008); and Ryan Goodman & Derek Jinks, ‗How to
Influence States: Socialization and International Human Rights Law‘ (2004) 54 Duke L.J. 621. 215
But see Harold Hongju Koh, ‗Why Do Nations Obey International Law?‘ (1997) 106 Yale L. J. 2599.
27
domestic judicial decisions have little impact on national compliance with horizontal treaty
obligations. However, domestic courts play a central role in ensuring compliance with
transnational treaty obligations. Moreover, domestic courts have the potential to play a very
significant role in promoting compliance with vertical treaty obligations. Whether that potential
is realized depends, to a great extent, on whether domestic courts adopt a nationalist or
transnationalist approach to the judicial application of vertical treaty provisions.
